Excess Mileage on a VT

[HB910]

Hi. I was hoping "Rob" may be able to help me. I am having difficulties with BMW Financial Services (BMWFS) after executing a VT last July. I am now in the "excess mileage" argument and they are reporting the charges (which is £5k) as a debt and unpaid - which is now adversely affecting my credit report and rating. There is quite a lot of detail in my instance and I can provide details if you think you may be able to assist?? Thanks.

[R0b]

Hi,

There's plenty of information on here about BMW and your options. Long and short of it is you either go through the complaints process and take it to the FInancial Ombudsman or take BMW to court for breach of data protection.

There seems to be some good news from the Ombudsman decided in favour of complainants recently for excess mileage so you might want to go down that route. Not muhc going on legal proceedings-wise because of the Coronavirus so either way you'll be waitig a while.

[HB910]

Hi Rob. Many thanks for the reply - for some reason I missed that you had replied!! Would you be able to point me in the right direction regarding the "good news" from the Ombudsman on the excess mileage issues?? Thanks.

[R0b]

You can find the last few posts here, where people have been successful, though unfortunately they don't return to give us a copy of the decision to assist others but there we are.

I've also attached a letter I found, probably from one of the threads but can;t remember where. You might be able to use that and argue there needs to be aa consistency within the FOS decisions, so if they agreed to it once, why can't they do it again.



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[HB910]

Hi Rob. Many thanks for the info and for the copy letter from the FOS. Can I just ask another question please. If I wish to pursue a claim against BMWFS for a breach of data - what Acts, etc., do I quote and how do I calculate "damages" regarding their false and incorrect reporting on my credit file? Thanks.

[R0b]

Damages is something of a mystery because there is little reported case law on the types of breaches. The Courts have said that any compensation is ultimately going to be fact specific but one should expect a modest amount of compensation, and there's argument that could be increased if there are aggravating factors. Anywhere between £750 for limited breaches through to several thousand for more serious or continuing breaches, but I think in the case of what BMW are doing, I think somewhere around the £1,500 to £2,000 mark might be considered reasonable but possible a little more if you could argue aggravated damages due to their conduct.

I do have a draft version of a letter before action floating around somewhere but it may need to be updated. I will have a look and hunt it out, but if you do go down this route then be prepared for a possible battle with BMW.

[HB910]

Hi Rob. Thanks so much for the reply. I am in a battle with BMW anyway - so I am going to add this into the mix!! If you do have a draft version of a letter - that would be most helpful Thanks again.

[R0b]

Sure, I'll hunt it out in a bit.

In the meantime, you might want to have a read of the extract below in the Court of Appeal case Grace v Black horse which discussed registration of defaults, but the principle is applicable to your situation - I've highlighted the relevant part. just as an FYI pt2537 was acting on behalf of Grace so he will probably be the expert to answer any questions, maybe even legal representation if it's affordable for you.

Case link: https://www.bailii.org/ew/cases/EWCA/Civ/2014/1413.html

36. For Black Horse Miss Urell countered as follows. First, if it was the case (as I have concluded that it was) that the underlying agreement remained lawful and in force, then it necessarily followed that arrears under it could form the basis of an accurate default registration, just as had happened in the McGuffick case. Looked at from the viewpoint of the agreement, the arrears did involve a default, even if the creditor could do nothing to enforce payment. Secondly, and as was accepted by Flaux J in the McGuffick case (at paragraph 101), the CRAs' computerised registration systems do not accommodate endorsements about unenforceability.

38. As for the second submission, I have not been persuaded that the shortcomings in the CRAs' registration systems can excuse a registration which is in substance inaccurate because of an omission (namely that the 'default' related to an unenforceable agreement). If an accurate registration cannot be accommodated, then the answer is for the industry to change its registration systems, and in the meantime for inaccurate registrations not to be made.

The principle is that using a late payment marker which is defined in the CRA system as a late payment of credit, not an alleged debt, is an inaccurate recording of data. that's in addition to other failures such as failing to close notify the CRA to close the account on the CRA's system which would have prevented them from reporting any further.

[R0b]

Found something from last year that I had started work on, it's a bit legnthy and possibly waffles on a bit but the intention was to set out the legal framework and background as to why there has been a breach.

You'll need to decide what you do and don't want to include in the letter before action but it should serve as a starting point at least. Happy to look over things and give feedback if you post up a draft.

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[HB910]

Thanks Rob. I am very grateful for your continue help with this. Thanks.

[HB910]

Hi Rob. I have written to them so I will keep you updated on my progress. Thanks again.

[HB910]

Hi Rob. Sorry to bother you again!! Thanks for the information on the Data Protection breach. I have written an LBA and will keep you updated. Can I just ask a specific question on the VT issue please. By VT'ing under Section 99(1) - does Section 99(2) - which states "liability is not affected by and liability which accrued BEFORE the termination, including arrears and agreed damages - mean that the Finance Company can indeed validly claim for the excess mileage charges?? I could just do with a "counter argument" to that "Section 99(2) of the Act", if possible!! Thanks.

[R0b]

Suggest you read my VT Guide pages 14-15 for a more detailed explanation.
https://legalbeagles.info/forums/for...on-your-rights

Also recommend you read the Mercedes County Court case for better understanding to that s.92 argument which you can find on the thread below, the link is on the last few pages.

https://legalbeagles.info/forums/for...pls-help/page2

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[HB910]

Brilliant - thanks Rob. Perfect!!

[pt2537]

Hi Guys

Sorry for the delay in checking in. ive not been able to get on line recently having been furloughed, and have had a number of personal family issues to tend to over the past 7 weeks.

Is there anything outstanding that i can assist with or has everything been resolved?